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Articles | Thu 14th May, 2020
One of the stories that is attracting growing attention as the Covid-19 pandemic continues, is the plight of the many thousands of crew members stranded on cruise and other ships across the globe. Readers will recall that at an early stage of the contagion, there were a number of incidents on such vessels as the Diamond Princess in which the virus became endemic with devastating consequences for those on board. The steps taken to quarantine and then repatriate the vast majority of passengers were completed some time ago. Not so, it would seem, in respect of crew members, many of whom find themselves floating on vessels in international waters with nowhere to dock, and a significant proportion of whom have fallen ill with the virus as a result. In this Special Briefing we take a look at a number of questions related to employers’ liability, and in particular the question of what, if any, claims individual employees (or their families) might bring arising out of the consequences of their contracting Covid-19.
The Athens Convention
Regular readers of 1 Chancery Lane briefings may at this point be nodding sagely and, well trained by our repeated insistence that Cruise Claims Are Different, be thinking Athens Convention. But no. The Athens Convention applies only where the Claimant is aboard the vessel pursuant to a contract of carriage; a crew member, by contrast, is aboard pursuant to a contract of employment. Therefore the nature and extent of the duties owed by the cruise operator, if it is his employer, are governed by his contract of employment, and not the Convention. Where the cruise operator is not a party to the crew member’s contract of employment, and where it cannot be said that it employed him, a glorious muddle arises, which (thankfully) is beyond the scope of this briefing).
Naturally issues of jurisdiction and applicable law will arise in any claim relating to the operation of a cruise ship; the Athens Convention, being a freestanding right of action, answers all of those questions mechanistically in relation to claims brought by passengers, but provides no assistance where the claim is brought by a crew member. Each case will be different, each turning on the wording of the employment contract, and almost every cruise will feature different employment contracts featuring different jurisdiction and law clauses for different (classes of) members of crew.
Let us assume for a moment that we have a claim brought by a member of crew employed by the cruise operator under an employment contract featuring English jurisdiction and applicable law clauses. What would such a claim look like?
Employers’ Liability
Of course, as a starting point, any action will need to make reference to the standard of reasonableness against which to calibrate the duty of care owed to employees in the peculiar circumstances of sea-faring in the midst of the Covid-19 pandemic. Even allowing for the unprecedented nature of the present crisis, the touchstone for assessing liability will remain the line of authority arising out of Swanick J’s classic formulation in Stokes v Guest Keen and Nettleford Bolts & Nuts Ltd [1968] 1 WLR 1776. This much is clear.
Less straightforward is the question we consider here, namely: how the Control of Substances Hazardous to Health Regulations 2002 (‘the Regulations’) might be used in support of such an action? These regulations, as readers will no doubt be aware, apply to all employers as a matter (for the most part) of strict criminal liability and may give rise to prosecution by the Health and Safety Executive (‘HSE’) if not complied with. By section 69(3) of the Enterprise Regulatory Reform Act 2013, for injuries suffered after 1 October 2013, however, it is no longer possible to bring a civil claim for breach of the Regulations. Yet whilst evidence of breach of statutory duty no longer founds a cause of action in its own right, it can still be relied upon to support a claim in negligence. In consequence, a proper understanding of the scope and application of the Regulations remains relevant in determining the standard against which responsible employers will be measured.
The Regulations, as their name suggests, are designed to provide a comprehensive framework for the control of hazardous substances at work, which include chemicals, airborne dusts, micro-organisms, biological agents and respiratory sensitisers.
As a first step, it would be necessary to establish whether the transmission of Covid-19 to crew members trapped at sea is capable of falling within the ambit of the Regulations at all. To do so, it must satisfy qualifications both as to the nature of Covid-19 itself, as a “substance hazardous to health”, but also as to the nature and context of its transmission.
That the virus meets the first of these qualifications seems fairly uncontroversial.
So far as is relevant, a “substance hazardous to health” is defined in Regulation 2(1) as:
“…a substance (including a preparation) –
(c) which is a biological agent;
A “substance” for these purposes, is defined as:
“a natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour (including micro-organisms);
And a “biological agent” as:
“ a micro-organism, cell culture, or human endoparasite, whether or not genetically modified, which may cause infection, allergy, toxicity or otherwise create a hazard to human health;”
A “micro-organism” is defined as:
“a microbiological entity, cellular or non-cellular, which is capable of replication or of transferring genetic material;”
Paragraph 16 of the HSE Approved Code of Practice L5 (Sixth Edition 2015) (“ACOP”), confirms a virus as an examples of a “micro-organism”.
As to the nature and context of transmission, matters are slightly more involved. A first, relatively straightforward, hurdle is found in Regulation 2(2), which states that the Regulations apply only to employees exposed to:
“ …substance[s] hazardous to health arising out of or in connection with work at the workplace.” [Emphasis added]
Taken at face value, these words seem to cover nearly all exposure by employees to hazardous substances at work. Paragraph 18 of the ACOP suggests as an example of those matters not covered, exposure to an infectious disease from a work colleague, but the editors of Butterworth Personal Injury Litigation Service [paragraph 1221 and 1223] and Munkman’s: Employer’s Liability [paragraph 26.21], rightly in the view of the authors, doubt the correctness of this position since, in many circumstances (including nearly all of those faced by crew members at sea), exposure to infectious diseases from work colleagues arises solely by reason of work in the workplace.[1] In any case, Paragraph 19 of the ACOP makes clear that infections contracted in the workplace which arise from incidental contact with third parties, are covered by the Regulations, and given the known and likely transmission patterns of the Covid-19 virus on cruise and other forms of shipping, it is clearly arguable that it constitutes a substance hazardous to health such as to trigger – all other things being equal – the Regulations’ protective framework.
The nature of the activities undertaken
This brings us to the second potential hurdle: the specific exclusion laid down in Regulation 3(3). This reads:
“(3) These Regulations shall not apply to the master or crew of a ship or to the employer of such persons in respect of the normal shipboard activities of a ship’s crew which –
[1] Some support for the ACOP position maybe found in the comments of HHJ Denyer QC at paragraphs 22-27 of his judgment in Billington v South Tees Hospitals NHS Foundation Trust, County Court (Bristol), 6 January 2015, but this concerned the question of whether the regulations are applied for the benefit of a (3rd party) patient in the case of an MRSA infection, relying upon an earlier and more expansive version of the ACOP, and they seem to sit in some tension with what was said in the Scottish case of Miller v Greater Glasgow Health Board [2010] CSIH 40.
(a) are carried out solely by the crew under the direction of the master; and
(b) are not liable to expose persons other than the master and crew to a risk to their health and safety,
and for the purposes of this paragraph “ship” includes every description of vessel used in navigation, other than a ship forming part of Her Majesty’s Navy.
Whilst the definition of “the normal shipboard activities of a ship’s crew” has not yet received consideration by the courts, it is not, in the view of the authors, unreasonable to suggest that it applies only to those activities which are necessary to actual sailing of a ship itself. On this understanding, it would not seem to extend to activities such as, for example, those related to the entertainment, safety and comfort of passengers on cruise ships, since these activities are clearly ancillary or additional to those involved in the actual sailing of a ship.
It is also at least arguable that the exclusion does not extend to injuries which arise in the course of undertaking “normal shipboard activities” but which are not in any way inherently related to those activities, such as, perhaps, the transmission of an infectious disease; arguments which might additionally draw upon the terms of Regulation 3(3)(b) to the extent that infectious diseases have an inherent liability “to expose persons other than the master and crew to a risk to their health and safety”.
The nature of the duties
To the extent that the transmission of Covid-19 at sea is within the scope of the Regulations, the next question will be the extent to which an employer has complied with the statutory duties they impose. Those duties are several-fold but centre upon the requirements set down in Regulations 6 and 7.
Regulation 6(1) obligates an employer not to undertake work which is liable to expose its employees to any substance hazardous to health, unless it has first (a) conducted a “suitable and sufficient” assessment of the risk created by that work as well as “the steps that need to be taken to meet the requirements of these Regulations” ; and (b) implemented the steps identified. As will be seen in a moment, to appreciate what “the requirements of these Regulations” are requires further cross-referencing within the Regulations themselves, and, in particular, of the requirements laid down in Regulation 7, but preliminary consideration will need to be given to what triggers the obligation to conduct a Regulation 6(1) assessment in the first place. Historically, it has been held that the duty upon employers to conduct such an assessment extends to both foreseeable and unforeseeable hazards (William v Farne Salmon & Trout Ltd 1997 SLT 1329) and that the fact that an informed person in so assessing would, or might, not have foreseen the hazard is irrelevant to the question of liability for breach of Regulation 6 or the Regulations more generally (Dungmore v Swansea NHS Trust [2002] EWCA Civ 1689, judgment of Hale LJ at [14]). Since the passage of section 69(3) of the Enterprise Regulatory Reform Act 2013, however, it is almost certain that some form of foreseeability would now be required as an initial trigger of the Regulation 6(1) duty. In the context of the Covid-19 crisis, of course, such a requirement is likely to be of considerable importance. It would be hard to argue that even the most prudent of employers could have foreseen events as they have unfolded in the last few months.[1]
Yet even if employers were not under a Regulation 6(1) duty when the Covid-19 outbreak began, such a duty is likely to have been triggered as the extent of the contagion, and its potential for virulent shipboard spread, became clear. For the purposes of assessing causation, the date of such knowledge or deemed knowledge could well prove significant, as could the adequacy of any risk assessment and measures subsequently undertaken.[2]
In relation to those measures themselves, the primary, but not exclusive, focus will need to be on the hierarchy of steps mandated by Regulation 7. The first is laid down in Regulation 7(1), which requires that exposure to substances hazardous to health should be prevented or, where this is not “reasonably practicable”, “adequately controlled”. The term “adequate” here is defined by Regulation 7(11) solely with reference to “nature of the substance and the nature and degree of exposure”. In the first instance, then, questions would need to be answered as to what steps, if any, employers took to prevent the virus coming on board a ship in the first place. If the infection had entered the ship prior to the threat being foreseeable, as long as employers can show that all reasonable efforts were thereafter made to offboard crews so far as that was possible, it is likely that attention will then need to turn to the adequacy of measures implemented to minimise exposure.
Where, as here, the hazardous substance in question is a required part of the work undertaken such that it cannot reasonably be substituted out, the measures laid down in Regulation 7(3) represent a starting point:
“(3) Where it is not reasonably practicable to prevent exposure to a substance hazardous to health, the employer shall comply with his duty of control under paragraph (1) by applying protection measures appropriate to the activity and consistent with the risk assessment, including, in order of priority –
(a) the design and use of appropriate work processes, systems and engineering controls and the provision and use of suitable work equipment and materials;
(b) the control of exposure at source, including adequate ventilation systems and appropriate organisational measures; and
(c) where adequate control of exposure cannot be achieved by other means, the provision of suitable personal protective equipment in addition to the measures required by sub-paragraphs (a) and (b).”
[1] An argument might be mounted, however, that an employer of ship-farers should have in place protective and/or contingency plans for the eventuality of an onboard infectious disease requiring some form of quarantine.
[2]It is noteworthy that even if an employer had undertaken a Regulation 6(1) assessment in relation to some other hazardous substance not related to Covid-19, as the Covid-19 threat became known, it would have been under an obligation by virtue of Regulation 6(3) and 6(4) to review and recalibrate its original assessment accordingly.
Of course, not all of these measures will be appropriate to tackling the spread of infection such as Covid-19, but where they are, their presence is likely to go some way towards evidencing compliance with employers’ duty of care; and their absence the reverse. Further potentially relevant provisions include Regulation 7(4)(a) concerning arrangements for safe handling, storage and transport of hazardous substances; Regulation 7(4)(c)(i) and (ii) concerning minimising the number of employees subject to exposure and the duration of that exposure; Regulation 7(4)(e) concerning the provision of adequate hygiene measures and washing facilities; Regulation 7(6)(b) concerning appropriate decontamination and disinfection procedures; Regulation 7(6)(c) concerning the safe collection, storage and disposal of contaminated waste; and Regulation 7(6)(g) concerning the institution of hygiene measures to reduce the accidental transfer of biological agents. Finally, by Regulation 7(9)(a) personal protective equipment, when deemed necessary, will need to comply with the provisions of the Personal Protective Equipment Regulations 2002.
Beyond Regulation 7, account may also need to be taken of the extent to which an employer has complied with its obligations under: Regulation 8(1), the obligation to ensure any control measure instituted is properly used or applied; Regulation 9, the requirement properly to maintain equipment; Regulation 10, the requirement to monitor of employee exposure; Regulation 11, the obligation to keep employee health under surveillance; and Regulation 12, the requirement to provide employees with suitable and sufficient information, instruction and training in relation to risk and the mitigation of exposure.
Conclusion
The authors do not pretend that a briefing such as this can provide anything like a comprehensive consideration of the issues which may face those seeking to rely upon the Regulations in support, or indeed in defence, of employee claims for the contraction of the Covid-19 virus at sea. Nevertheless, it is hoped that it does at least offer some preliminary food for thought, at a time when cruise operators are making valiant attempts to repatriate crew members, often in the face of recalcitrance on the part of the governments of those nations which might have been expected to assist them.
About the authors
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade.
Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.
